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ELCStruck OutNot stated in the judgment (Notice of Motion dated 17th January 2024)· [2024] KEELC 5590 (KLR)

Kirao & 5 others v Bakari & another (Environment & Land Case 14 of 2013) [2024] KEELC 5590 (KLR)

Environment and Land Court

31 July 2024

MNMwangi Njoroge

805 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan court struck out a review application because the issues raised should instead be argued before the Court of Appeal where an appeal was already pending.

What this practically means

Executive summary

The 2nd Defendant, Patrick Shujaa Wara, moved the court by Notice of Motion dated 17th January 2024 under Order 45 of the Civil Procedure Rules seeking review of the judgment delivered on 25th October 2023, in which the Plaintiffs' claim for adverse possession was dismissed. He complained that the judgment omitted to pronounce itself on his counterclaim dated 8th June 2020, and sought that the judgment be reviewed to that extent, with costs in the cause. The Plaintiffs, through the 4th Plaintiff Martin Kazungu Konde, opposed the application, pointing out that a notice of appeal and a Record of Appeal against the whole judgment were already filed and pending before the Court of Appeal. The application was canvassed by written submissions. The court confirmed that the 5th Plaintiff had filed a notice of appeal dated 27th October 2023 against the whole decision. Applying Order 45 Rules 1 and 2, the court held that although a non-appealing party may seek review notwithstanding a pending appeal, the 2nd Defendant, as a necessary party to the appeal, can present his case before the Court of Appeal once named as respondent there. The court observed that the issue of vacant possession raised in the counterclaim is inextricably intertwined with the appeal on adverse possession. Declining to delve into the merits, the court struck out the review application with no orders as to costs.

Key legal issues

Whether the review application was competent in the face of a pending appeal against the whole decision

Holding

The application was incompetent; the 2nd Defendant's grievance over the counterclaim should be raised in the Court of Appeal where it is intertwined with the appeal on adverse possession

Reasoning

Order 45 Rule 2 bars review where the applicant, being a respondent, can present the review case to the appellate court. The dismissed adverse possession claim and the claim for vacant possession on the counterclaim are inextricably intertwined before the Court of Appeal. The court therefore declined to delve into the merits and struck the application out with no orders as to costs.

p. 2

Legal principles established

A respondent who seeks review of a decree under appeal may, once named as a respondent in the appeal, present to the appellate court the case on which he applies for review

Court orders

1.The application for review dated 17/1/2024 is struck out
2.No orders as to costs

Authorities

Legislation

Civil Procedure RulesOrder 45 Rule 1
Civil Procedure RulesOrder 45 Rule 2

Jurisdiction invoked: Order 45 Rules 1 and 2 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kirao & 5 others v Bakari & another (Environment & Land Case 14 of 2013) [2024] KEELC 5590 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 17th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5590/eng@2024-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.